Reinach v. City and County of San Francisco

• Decision Date: 05 November 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Sadye REINACH, Plaintiff-Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendants, Cross-Complainant and Appellant, and Tide Water Associated Oil Company, etc., et al., Defendants, Cross-Defendants and Respondents. Civ. 17753.

Page 1006

331 P.2d 1006

164 Cal.App.2d 763

Sadye REINACH, Plaintiff-Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendants, Cross-Complainant and Appellant and Tide Water Associated Oil Company, etc., et al., Defendants, Cross-Defendants and Respondents.

Civ. 17753.

District Court of Appeal, First District, Division 2, California.

Nov. 5, 1958.

As Amended Nov. 12, 1958.

Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for appellant.

O'Connor, Moran, Cohn & Hall, San Francisco, for respondent Floyd M. Elmore.

John J. Taheny, San Francisco, for respondent Sadye Reinach.

Carroll, Davis & Burdick, San Francisco, for respondent Tide Water Oil Co.

KAUFMAN, Presiding Justice.

Sadye Reinach brought this action for personal injuries received when she tripped and fell over a depressed driveway across the sidewalk in front of the gas station leased by defendant Elmore, from the owner, the defendant Tide Water Associated Oil Company (hereafter referred to as 'Tide Water'). The suit against the defendant, City and County of San Francisco (hereafter referred to as 'City') was based on the City's alleged knowledge or notice of a dangerous condition under the Public Liability Act, Government Code, §§ 53050-53051. The City denied that the condition was dangerous, or that it had knowledge thereof, and cross-complained against defendants Tide Water and Elmore, to have its rights to indemnity against them declared. Two days before the trial, in consideration of $6,000 ($3,000 each, paid by the respective insurance companies of Tide Water and Elmore), Mrs. Reinach executed a covenant not to execute in favor of defendants Tide Water and Elmore. Trial was had before the court which awarded Mrs. Reinach a judgment of $12,123.05 against all three defendants, and on the cross-complaint held that the City had no right to indemnity. This appeal is taken by the City from the judgment awarding $12,123.05 to the plaintiff and denying the City relief against Tide Water and Elmore. The City contends that:

1) The Court's finding that the City had notice of a dangerous condition in the sidewalk is without support in the evidence.

2) The Court erred in not subtracting from the judgment the $6,000 received by the plaintiff for her covenant not to execute.

3) The Court erred in denying the City's right to indemnity.

As to the City's first contention, the evidence indicates that the gas station in question was built between 1919 and 1926. The depressed driveway across the sidewalk was constructed for the purpose of giving access to the grease rack of the service station by Tide Water in violation of a city ordinance requiring a permit and indemnity agreement for such construction. Under the Public Liability Act of 1923, Government Code, §§ 53050-53051, the liability of a city for the condition of public streets and sidewalks is limited to dangerous or defective conditions of which the city has notice or knowledge and which the city fails to remedy within a reasonable time. Proof of actual or constructive notice of the existence of a dangerous condition is an essential element of recovery under the statute. Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977. As pointed out in Peters v. City and County of San Francisco, 41 Cal.2d 419, at page 427, 260 P.2d 55, at page 60, where there is no evidence of actual notice, a city will be charged with constructive notice if the defects have existed for such length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. Here, in view of the conflicting evidence as to size and character of the depression, and whether it was sufficiently marked, we cannot say as § matter of law that it was not a dangerous condition, or that it was not sufficiently conspicuous to give the City constructive notice.

The City seeks to rely on the rule that a municipality is not liable for injuries resulting from slight defects in a sidewalk from which it may not reasonably be anticipated that accidents may result. Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990. Whether or not a defect is major or minor is a question of fact for the sound discretion of the trial court. Sheldon v. City of Los Angeles, 55 Cal.App.2d 690, 131 P.2d 874; Warren v. City of Los Angeles, 91 Cal.App.2d 678, 205 P.2d 719; Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977.

The City further argues, in effect, that the evidence indicates as a matter of law that the plaintiff was guilty of contributory negligence. As stated in Peters v. City and County of San Francisco, 41 Cal.2d 419, at page 424, 260 P.2d 55, at page 59:

'It is well settled that, in the absence of notice or knowledge to the contrary, a pedestrian making normal use of the public sidewalk has a right to assume that it is in reasonably safe condition, and while he must use ordinary care for his personal safety and make reasonable use of his faculties to avoid injury to himself, he is not required to keep his eyes fixed on the ground or to be on a constant lookout for danger.'

In the same case the Court also stated that a pedestrian cannot be held to examine the sidewalk with the same care as would be required of the City in discharging its duty of inspection. The evidence here indicates that at the time of the accident the plaintiff was 80 and in excellent health. She had never been in the neighborhood before. She testified that she wasn't looking down and didn't see anything until she fell. As to the visibility of the depression, whether the day was cloudy or sunny, how well the depression was marked, there was conflicting evidence. Contributory negligence is a question of fact for the sound discretion of the trial court and cannot be disturbed on appeal, except in abuse of discretion. We find no such abuse of discretion here.

The City's second contention of error on appeal is the failure of the trial court to take into account the $6,000 received by Mrs. Reinach from the other two defendants for her covenant not to execute. The agreement is referred to as a 'release' in the amended answer of appellant City, which asks that 'plaintiff take nothing'. The covenant expressly states that it...